This blog focuses on news and information regarding practice in the federal courts in the Eastern District of California, with a special emphasis on criminal and civil rights cases.

Blog Author

John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. He currently serves as an adjunct professor in clinical trial advocacy at the University of the Pacific McGeorge School of Law. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.

Disclaimer

This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.

McDavid, Eric Case

November 25, 2015

The intercept.com has published a 15-minute video documentary, "Eric and Anna," about the EDCA Eric McDavid "ecoterrorist" case and the FBI's entrapment here. It includes actual case video and audio recordings. And here is the print story that goes with the video.

Directors Katie Galloway and Kelly Duane de la Vega are interviewed on the making of "Eric and Anna" here.

September 21, 2015

Remember the Eric McDavid case? If not, here are all my posts on the case to get you up to speed.

In my last post on the case, I explained that, on July 30, the defense moved for an order to show cause asking the Court to order the government to explain how and why it withheld nearly 3,000 pages of documents bearing on Eric McDavid's entrapment defense until long after he was convicted and sentenced to 20 years -- including recently produced romantic correspondence between McDavid and the FBI's informant. The motion scheduled a hearing for September 3, 2015.

On August 20, the government filed this oppositionwith these exhibitsresponding that McDavid's settlement agreement barred him from requesting an explanation, and said it was even considering its available remedies for McDavid's potential "breach" of the plea agreement.

On August 27, the defense replied that the request did not violate the settlement agreement, and was "guided and protected by the most cherished principles of open government and accountability."

On September 2, the Court cancelled the hearing and instead issued this Order denying the defense motion, explaining that the request was barred by the plea agreement and was "moot because the Court has already conducted its own inquiry into that precise question." But seeSacramento Bee, 1/8/15 (quoting Judge England as saying at McDavid's release hearing that "This is something that needs to be dealt with, and I want to know what happened.").

July 31, 2015

Yesterday, Eric McDavid's attorney, Mark Reichel, filed this Motion asking the Court to issue an order to show cause to prosecutors to explain how and why they withheld critical exculpatory evidence from the defense before trial. TakePart.com, an investigative journalism website, has a lengthy feature on the motion, excerpted below:

McDavid was released in January after serving nine years of a 20-year sentence on federal charges related to an alleged ecoterrorism conspiracy. Documents had emerged, two months earlier, that were absent at his trial, including correspondence supporting his claim that he had been entrapped by an FBI operation involving a paid informant.

U.S. attorneys new to the case had discovered the documents during a search through their predecessors’ file, which they performed in response to a habeas corpus petition challenging the government’s right to hold McDavid. At a court hearing in January, they said the failure to produce the 13 love letters between McDavid and an informant known as Anna—along with almost 3,000 other documents, including an email showing the government had asked to polygraph-test Anna and evidence that she had been coached in the love affair by a Behavioral Analysis Unit—was “inadvertent” and “a mistake.”

Six months later, Reichel was still screaming about the loss—or deliberate withholding—of the documents. He’s a big man, passionate about justice, and he gets worked up: “Who is going to believe they fucking misplaced that shit? I mean, seriously! And then, after he’s convicted nine years later you say, ‘Oh, here they are.’ Do they get that much deference?”

He may soon find out. On July 30, Reichel filed a 28-page motion in federal court in Sacramento asking U.S. District Court Judge Morrison C. England Jr. to order the government to explain itself. The U.S. Attorney’s Office and the FBI would be required to detail how and why the evidence went missing. The motion also asks the judge to “grant such further relief as the Court deems appropriate.” Maybe someone will be punished. Maybe more transparency can be introduced.

Justice out of balance

Re “Eco-terror case reflects poorly on legal system” (Forum, Another View, Jan. 25): As a former federal prosecutor who held several supervisory positions, I support the point made by attorney Mark Reichel, who wants a better answer for the apparently outrageous prosecution of his client, Eric McDavid.

You might be tempted to pass over his client’s story of evidence withheld because of his alleged crime. But we ignore this kind of tragedy at our peril because it’s in the tough cases where we learn whether our system is working – or not.

While we often see stories of those unjustly convicted being released from prison, where are the stories fully explaining how it occurred or who is being held accountable? And when can you recall an FBI agent or a prosecutor being investigated for this kind of misconduct, let alone fired?

The only people who know what happened are those who engaged in serious misconduct and their supervisors, who do not hold them accountable. We spend more time investigating deflated footballs than how and why innocent people spend years in prison. If only one side is forced to play by the rules, the scales of justice never will be balanced.

January 30, 2015

Salon.com today has an interview with Eric McDavid's trial attorney Mark Reichel in a piece entitled, "They can do whatever the f*** they want: Inside the FBI's disturbing quest for domestic terrorists," excerpted below:

Mark Reichel, who served as McDavid’s trial attorney, agrees. The FBI’s actions, he told Salon, were improper and at times illegal; that evidence to this effect didn’t come out in the original trial is extremely suspicious, he suggests. Salon spoke with Reichel about his perspective on the case and its broader implications for the way federal investigators and prosecutors go after suspected terrorists. Our conversation has been edited for length and clarity.

* * *

Because Eric did plead guilty, does that mean you won’t be able to address why the documents were withheld?

Yes. He was required to plead guilty to a lesser crime and required to agree not to sue over what happened to him. What does that say about our justice system? It speaks volumes, and it needs to be fixed because if you were Eric, you would do the same thing. The goal is to win, not to win and look good. If you wanted to continue to press this case, he would clearly spend another three years in prison, I’m sure, and he’s already served nine. If they say, “We’ll let you out, but you have to sign something,” that’s not of his making and that’s not something that he should feel unethical or morally responsible about. He did what he had to do, which is to admit that he engaged in a conspiracy, which has a maximum of five years. He served nine. If you sign on the dotted line, you walk out the door. He’d never been in jail before, let alone in prison federally as a convicted domestic terrorist. He did exactly what he had to do and what he should have done.

What we need to do is put an apparatus in place to check federal law enforcement and the awesome, unbridled power of federal prosecution in cases of national importance like terrorism, to hold them accountable if they don’t play fair. Because otherwise, this will happen over and over and there will be no normative deterrent effect. When the law enforcers don’t follow the law, don’t expect anyone else to.

There needs to be accountability in this case, and it’s not that hard to do that. I know that the local prosecutors and federal prosecutors nationwide would be very unhappy if a defense attorney had been asked for documents that he has to give up, he was then in court told by a judge that he has to give them up, and in both instances he said they don’t exist. And then at trial, he made fun of the prosecution and said, “they refer to these documents that we all know don’t exist” and then the guy gets acquitted and seven years later I just publicly hand out those documents and said I had this the whole time. Well, they’d be screaming that I’d be disbarred. They’d be screaming that that lawyer should be sanctioned. They’d be screaming that justice had been corrupted. That’s exactly what happened in this case, except it was just on the other side of the aisle. It doesn’t mean justice was less corrupted.

* * *

In a 2008 Elle article about the case, you’re quoted as saying, “If this case teaches one lesson, it’s that we are at the point where the government can say whatever the fuck they want. Do whatever the fuck they want. Whatever the fuck they want.” Do you still feel that this shows to be the case?

Yes. Why not? For whatever reason, the smoking gun was delivered and they say, “Well, here’s a smoking gun and it gets you out of prison, no more questions please.” I still think they can say whatever the fuck they want, they can do whatever the fuck they want, whatever they want, because they did. It may not even be the prosecutors in the case, it may be the FBI agents or a federal agency that was involved that did this. That doesn’t mean that there shouldn’t be an examination of what happened. The truth will always make us stronger, always.

* * *

And is there going to be any way to get that? Or because of the plea agreement are we kind of stuck?

No. Eric personally couldn’t ask for a new trial or do something as a litigant himself in federal court, I don’t think. He might be able to, but I don’t think so right now. The courts, other lawyers, the media, Congress, and the Justice Department, FBI directors — nothing is preventing them, anyone, from asking for accountability and asking for a change.

I want you to know and understand that the way it works in the federal system is that the FBI and the other federal agencies — not the federal prosecutors, but the federal agencies — are very, very well trained and they make the case. They are out in the field, they collect the evidence, then they bring it to the federal prosecutors and say, “Here is what we have, and we ask you to indict this case.” The prosecutor reviews the evidence and then files the indictment and takes over the case. But usually all the evidence is maintained by the case agent, who often has a law degree, who’s been very well-trained on how to present a case for court. The federal agents also are allowed to sit at counsel table with the federal prosecutors. That’s unique. Normally, witnesses are required to be excluded from the court proceedings, so they can’t watch it and shape their testimony if they’re called later on. The rule we’ve developed is that we let the federal agents come to all the court proceedings, and stay in the court proceedings when they’re closed to the public. We allow them to maintain and hold secure the evidence.

So the FBI in this case was present in court when I asked about these exact items, was present in court when the judge ordered they be produced, was present in court when we argued about them in front of the jury, was present in court when the prosecutors mocked me in front of the jury. Think about that. These are writings from the main defendant, the main focus of this million dollar investigation, writings by him on the subject of the crime, sent directly to the FBI. How on earth did they sit through the trial, the pre-trial motions, and were these not turned over? We need to set something up so this doesn’t happen anymore.

January 25, 2015

Today's Sacramento Bee contains this Viewpoint by Eric McDavid's trial attorney, Mark Reichel, calling for more answers from the feds on why they didn't turn over crucial evidence at trial:

Eric McDavid was freed recently after serving nine years in federal prison, after extensive evidence that the FBI refused to produce prior to his trial mysteriously showed up in an FBI file. The evidence was the most important piece in the entire case (“Mistake was made, but no misconduct in eco-terror case”; Jan. 17).

The evidence contained letters and emails from McDavid to an FBI informant named “Anna,” as well as FBI documents showing their own questions about her credibility. Had this evidence been disclosed before trial – it was ordered to be produced by a federal judge – it would have resulted in a pretrial dismissal of all charges or an easy acquittal.

The case speaks very poorly of our current federal criminal justice system and points out the fact that we have no mechanism sufficiently in place to ensure fairness and due process. I must ask what we can do to correct the problem.

McDavid’s conviction was based on the FBI’s desire to cover up its mistakes. Specifically, the investigation was extremely expensive, using surveillance aircraft, rented cabins, numerous government agencies; and broke the law on many occasions, with illegal political spying on lawful gatherings and illegal wiretaps, and required the untrained and unsupervised 18-year-old informant to commit serious federal crimes.

From 2006 to the appeal of his 20-year sentence, I sought through aggressive legal motions to gain all evidence of McDavid’s writings to the informant, which would show his romantic interest in the informant and her methods of seducing him, as well as his reluctance to commit the crime. I also sought evidence casting doubt on the informant’s credibility.

Not only did the federal government deny these items existed in its written responses to these motions and in arguments to the court, prosecutors filed proactive motions to prevent any trial defense which discussed romance between McDavid and the FBI informant, or his reluctance to commit the crime.

In the closing argument to the jury, prosecutors mocked the defense position that “love letters” existed and pointed to the lack of any such evidence. I had also filed a motion to dismiss the case because of the improper method of creating a romance with the defendant by the FBI informant. The government argued to the judge that I had no letters to prove it; the motion was denied.

Jurors submitted sworn declarations that they were very close to an acquittal, based upon the improper creation of romance by the informant and their view of reluctance by McDavid. They also had doubts about the informant’s credibility.

No one is silly enough to believe that writings and emails were “forgotten” or “overlooked,” or that the failure to disclose them was inadvertent. The FBI agents sat at the counsel table as a member of the court for all proceedings.

January 24, 2015

In the Huffington Post, Eric McDavid's post-conviction attorney Ben Rosenfeld says his client deserves answers from the feds who kept exculpatory information from McDavid at trial. He questions the government's view that we don't know what happened, but whatever happened must have been inadvertent. (Yeah, isn't that inherently contradictory?) Rosenfeld calls for an official inquiry into what happened and why.

I second that, and many in the defense bar feel the same. Why is it that judges are far more likely to issue an order to show cause to a defense attorney for missing a court appearance or a purported local rules violation than to the prosecution after it is discovered that they failed to disclose exculpatory evidence at trial?

Here are some excerpts from Rosenfeld's piece:

Rather than explain what happened, though, federal officials are trying to skate away with the hollow press statement that "a mistake was made." They contend they promptly turned over the missing documents upon discovering them, and that they were not important to the defense anyway. Both claims are patently untrue.

* * *

Contrary to the government's public relations spin, the documents it withheld were central to Mr. McDavid's entrapment defense. Clearly, the government recognizes their importance too or it would not have negotiated McDavid's release. They include love letters to Anna, and evidence she pretended to reciprocate his feelings to keep him on the hook, writing to him, for example, "I think you and I could be great, but we have LOTS of little kinks to work out," and, "I hope in Indiana we can spend more quality time together, and really chat about life and our things."

The government's repeated insistence that it simply overlooked this correspondence strains credulity. Correspondence between an informant and a target is rudimentary evidence in a criminal case. Mr. McDavid's trial attorney Mark Reichel made it a centerpiece of his cross-examination of the informant, getting her to admit only grudgingly that McDavid had sent her romantic epistles, which she downplayed as containing only a "slight indication that he might have been interested in me." In point of fact, he opened his heart to her, declaring, for example, "all the endorphins shoot off in my head when ever I think of u." Prosecutors did nothing to correct the informant's misleading testimony.

* * *

Prosecutors kept up the charade well after Mr. McDavid filed his habeas petition. . . . : "Although McDavid insinuated throughout the trial that there was a romantic relationship between himself and Anna, the evidence was to the contrary."

In the meantime, Mr. McDavid sat in prison for two more years. The government also withheld evidence that the FBI ordered, then mysteriously canceled, a polygraph examination of Anna the informant, suggesting both that the FBI had doubts about her credibility and that it wanted to bury those doubts at a critical junction in the case, just before Anna roped all of the co-defendants together from around the country for a meeting at Mr. McDavid's house. It was at that meeting, the government alleged, that the group agreed to do something.

Like the missing correspondence, the polygraph order remained concealed throughout trial. It surfaced only in response to a Freedom of Information Act request which McDavid's supporters submitted 2-3 years after his conviction. In response, the government produced roughly 2,500 heavily reacted pages while holding back nearly 900 others on various grounds. Among the items redacted in the polygraph order is the mere name of the Assistant U.S. Attorney who signed off on it, concealed for alleged privacy reasons.

* * *

The U.S. Attorney is correct about one thing: As a condition for being released from prison, Mr. McDavid pleaded guilty to a new felony charge of general conspiracy which carries a maximum penalty of five years in prison, half the time he had already served. But if McDavid was entrapped, as the evidence overwhelmingly shows, he is in a real sense innocent. Before the FBI fastened Anna the informant onto him and pursued him relentlessly with dirty tricks, he had no predisposition whatsoever to commit the charged offense. Whatever conspiracy he may have joined was a pure artifice of the FBI's and Anna's from the start.

The U.S. Attorneys who negotiated Mr. McDavid's release are not responsible for his entrapment or unfair prosecution. They inherited the case after the fact and acted honorably by helping to correct a grievous injustice. But they need to stop vouching for their predecessors and start conducting an inquiry. Ninth Circuit Chief Judge Alex Kozinski recently warned of "an epidemic of Brady [evidence withholding] violations abroad in the land." Unless and until prosecutors explain their so-called mistake, the public should doubt that's all it was.

January 18, 2015

"Role of FBI informant in eco-terrorism case probed after documents hint at entrapment, Guardian, 1/13/15. This includes excerpts from a hand-written love letter from McDavid to "Anna" and emails exhanged between them, which were first disclosed to the McDavid defense team in November 2014.

"Another view: Mistake was made, but no misconduct in eco-terror case," SacBee, 1/17/15. U.S. Attorney Ben Wagner's opinion piece criticizing the fairness of the SacBee's coverage of the McDavid release proceedings.

"After nine years in prison, accused eco-terrorist adjusts to sudden release," SacBee, 1/17/15. The Bee's third front-page story on McDavid's release.